Impact of the African Charter on domestic human rights in Africa

In the 25 years of its existence, the African Commission established
itself firmly as the primary human rights body on the African
continent. Through its progressive interpretation of the Charter, the
Commission has given guidance to states about the content of their
obligations under the Charter, and its provisions have inspired
domestic legislation. In a number of countries, the Charter is an
integral part of national law by virtue of the constitutional system in
place, and in at least one state, Nigeria, it has explicitly been made part
of domestic law through domesticating legislation.

The normative impact of the Charter has been significant. In its
thematic resolutions, the Commission clarified the scope of rights and
provided a yardstick for the development of domestic law, in
particular in the ‘Principles and Guidelines on the Right to a Fair
Trial’ and the ‘Principles of Freedom of Expression’. It urged states to
adopt a moratorium on the death penalty, thus supporting the trend
towards abolition in Africa. The principle that indigenous peoples are
rights-holders under the Charter was clearly established. In its
Advisory Opinion on the United Nations Declaration on the Rights of
Indigenous Peoples, the Commission addressed the concerns of
African states about this Declaration, and thus contributed to its
eventual adoption by most African states. Through its active
participation in the adoption of the Women’s Protocol, the
Commission provided clarity about the rights of women in the African
context, and provided invaluable guidance to African states. A process
to adopt a Model Law on Access to Information in Africa is on-going.

The sessions of the Commission provide an important space for
the articulation of issues that are neglected or silenced domestically.
More and more, NGOs and NHRIs benefit from interactions at these
sessions, and are informed, strengthened and better equipped to
perform their functions. Engagement with the African human rights
system shapes the agenda of these role players.

Even if the findings and concluding observations of the
Commission are not formally binding, states take serious note of
them. The Endorois decision, for example, led to an intensive national
dialogue about the accommodation of indigenous communities in
Kenya.

The missions undertaken to state parties sensitise and support
continuing efforts at the national level to improve human rights and
inspire legal or institutional reform. Commissioners acting as Special
Rapporteurs also engage with states in order to address allegations
falling within the domain of the Special Rapporteurs.

The Charter’s complaints mechanism provides an important
avenue for recourse to complainants who could not find redress at the
national level. The Commission’s findings have in a number of
instances been implemented. In many instances, the finding of the
Commission assisted in garnering international awareness and
solidarity, as was the case in Nigeria during the Abacha regime.

National courts are increasingly influenced by and use the Charter
and the Commission’s findings to assist them in interpreting national
law. Prominent examples are the Constitutional Court of Benin,
which in numerous case made reference to the African Charter, and in
some applied it directly; and the Supreme Court of Lesotho, which
relied on the African Charter together with other international human
rights treaties in Molefi Ts’epe v The Independent Electoral Commission.

The findings of the Commission also reverberated in the
jurisprudence of national courts outside Africa, in the judgments of
regional courts (such as the case of Campbell v Zimbabwe, decided by
the SADC Tribunal), and even the International Court of Justice (for
example, in the case of Diallo (Republic of Guinea v Democratic Republic
of the Congo).